In a recent decision (UPC_CFI_156/2024), the UPC's Munich Local Division dismissed an application for preservation of evidence in relation to an alleged infringement concerning LED display panels installed in the city of Mönchengladbach. The claimant contended that these panels were identical to a sample product, which had previously been examined by an expert and was alleged to infringe the patent in suit. The request for the preservation of evidence sought that an independent expert should be allowed to examine LED display panels that had actually been installed in the city of Mönchengladbach, including dismantling and, if necessary, conducting destructive testing of the panels.
The Munich Local Division ultimately dismissed the application on the grounds that such preservation measures had become unnecessary due to the defendant's procedural conduct. The court emphasized that under Rule 171.2 RoP, a statement of fact that is not specifically contested by any party is deemed to be undisputed between the parties. The court also clarified that a specific denial requires, as far as the actions of the denying party are concerned, a substantiated denial. As the defendant did not offer a substantiated denial of the claimant's factual assertions regarding the alleged infringing product, the court deemed these facts undisputed between the parties. That is, the Munich Local Division held that the defendant's conduct during proceedings amounted to a tacit acceptance that the LED panels at issue were structurally identical to those previously examined by the claimant's expert.
Notably, the court confirmed that this procedural outcome would continue to have an effect in the subsequent main proceedings, precluding the defendant from later disputing the identity of the products. Such a submission would be late and an abuse of rights, according to Article 24(1) (e) UPCA and, for example, Section 242 of the German Civil Code.
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